FLORIDA POWER CORPORATION d/b/a PROGRESS ENERGY FLORIDA, INC. First Mortgage Bonds 4.55% Series due 2020 5.65% Series due 2040 UNDERWRITING AGREEMENT
Exhibit 1
FLORIDA POWER CORPORATION
d/b/a PROGRESS ENERGY FLORIDA, INC.
d/b/a PROGRESS ENERGY FLORIDA, INC.
First Mortgage Bonds
4.55% Series due 2020
5.65% Series due 2040
4.55% Series due 2020
5.65% Series due 2040
March 22, 2010
To the Representative named in Schedule II hereto
of the Underwriters named in Schedule II hereto
of the Underwriters named in Schedule II hereto
Dear Ladies and Gentlemen:
The undersigned Florida Power Corporation d/b/a Progress Energy Florida, Inc. (the “Company”)
hereby confirms its agreement with each of the several Underwriters hereinafter named as follows:
1. Underwriters and Representative. The term “Underwriters” as used in this
Underwriting Agreement (the “Agreement”) shall be deemed to mean the firm or the several firms
named in Schedule II hereto and any underwriter substituted as provided in paragraph 6, and
the term “Underwriter” shall be deemed to mean any one of such Underwriters.
If the firm or firms listed as Representatives in Schedule II hereto (individually and
collectively, the “Representative”) are the only firm or firms serving as underwriters, then the
terms “Underwriters” and “Representative,” as used herein, shall each be deemed to refer to such
firm or firms. Each Representative represents jointly and severally that they have been authorized
by the Underwriters to execute this Agreement on their behalf and to act for them in the manner
herein provided. All obligations of the Underwriters hereunder are several and not joint. If more
than one firm is named as Representative in Schedule II hereto, any action under or in
respect of this Agreement may be taken by such firms jointly as the Representative, or by one of
the firms acting on behalf of the Representative, and such action will be binding upon all the
Underwriters.
2. Description of Securities. The Company proposes to issue and sell its First
Mortgage Bonds of the designation, with the terms and in the amount specified in Schedule
II hereto (the “Securities”) under its Indenture, dated as of January 1, 1944, with The Bank of
New York Mellon, as successor trustee (the “Trustee”), as supplemented by the Seventh, Eighth,
Sixteenth, Twenty-Ninth, Thirty-Eighth and the Fortieth through the Forty-Eighth Supplemental
Indentures, and as it will be further supplemented by the Forty-Ninth Supplemental Indenture (the
“Forty-Ninth Supplemental Indenture”) relating to the Securities, in substantially the form
heretofore delivered to the Representative, said Indenture as supplemented by the Seventh, Eighth,
Sixteenth, Twenty-Ninth, Thirty-Eighth and the Fortieth through the Forty-Eighth
Supplemental Indentures, and to be supplemented by the Forty-Ninth Supplemental Indenture
being hereinafter referred to as the “Mortgage.”
3. Representations and Warranties of the Company. The Company represents and warrants
to each of the Underwriters that:
(a) The Company has filed with the Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-3, as amended (No. 333-155418-01) (the
“Registration Statement”), under the Securities Act of 1933, as amended (the “Securities
Act”), for the registration of an indeterminate amount of First Mortgage Bonds, Debt
Securities and Preferred Stock. The Registration Statement became effective upon filing
with the Commission on November 18, 2008. The term “Registration Statement” shall be deemed
to include all amendments made by the Company prior to the Applicable Time (defined below)
and all documents filed by the Company with the Commission and incorporated by reference
therein (the “Incorporated Documents”). The base prospectus filed by the Company as part of
the Registration Statement, in the form in which it has most recently been filed with the
Commission prior to the date of this Agreement, is hereinafter called the “Basic
Prospectus.” The Basic Prospectus, as supplemented by a preliminary prospectus supplement,
dated March 22, 2010, relating to the Securities, and all prior amendments or supplements
thereto made by the Company (other than amendments or supplements relating to the Registered
Securities other than the Securities), including the Incorporated Documents, is hereinafter
referred to as the “Preliminary Prospectus.” The Preliminary Prospectus, as amended and
supplemented, including the Incorporated Documents, at or immediately prior to the
Applicable Time (as defined below) is hereinafter called the “Pricing Prospectus.” The
Basic Prospectus, as it is to be supplemented by a prospectus supplement, dated on the date
hereof, substantially in the form delivered to the Representative prior to the execution
hereof, relating to the Securities (the “Prospectus Supplement”) and all prior amendments or
supplements thereto (other than amendments or supplements relating to securities of the
Company other than the Securities), including the Incorporated Documents, is hereinafter
referred to as the “Prospectus.” Any reference herein to the terms “amend,” “amendment” or
“supplement” with respect to the Registration Statement or the Prospectus shall be deemed to
refer to and include any post-effective amendment to the Registration Statement, any
prospectus supplement relating to the Securities filed with the Commission pursuant to Rule
424(b) under the Securities Act and the filing of any document under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), deemed to be incorporated therein after the
Applicable Time and prior to the termination of the offering of the Securities by the
Underwriters; and any references herein to the terms “Registration Statement” or
“Prospectus” at a date after the filing of the Prospectus Supplement shall be deemed to
refer to the Registration Statement or the Prospectus, as the case may be, as each may be
amended or supplemented prior to such date.
For purposes of this Agreement, the “Applicable Time” is 2:30 p.m. (New York City time)
on the date of this Agreement; the documents listed in Schedule III hereto, taken
together, as of the Applicable Time are collectively referred to as the “Pricing Disclosure
Package;” and all references to the Registration Statement, the Pricing
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Disclosure Package or the Prospectus or any amendment or supplement thereto shall be
deemed to include the copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system (“XXXXX”).
(b) The Registration Statement, at each time and date it became, or is deemed to have
become, effective, complied, and the Registration Statement, the Prospectus and the
Mortgage, as of the date hereof and at the Closing Date (as defined herein), will comply, in
all material respects, with the applicable provisions of the Securities Act and the Trust
Indenture Act of 1939, as amended (the “1939 Act”), and the applicable instructions, rules
and regulations of the Commission thereunder; the Registration Statement, at each time and
date it became, or is deemed to have become, effective, did not contain an untrue statement
of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; the Pricing Disclosure Package as
of the Applicable Time did not contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and the Prospectus, as of its date
and at the Closing Date, will not contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however, that the
foregoing representations and warranties in this subparagraph (b) shall not apply to
statements or omissions made in reliance upon and in conformity with the information
furnished herein or in writing to the Company by the Representative or by or on behalf of
any Underwriter through the Representative expressly for use in the Prospectus or to any
statements in or omissions from the Statement of Eligibility (“Form T-1”) of the Trustee.
The Incorporated Documents, at the time they were each filed with the Commission, complied
in all material respects with the applicable requirements of the Exchange Act and the
instructions, rules and regulations of the Commission thereunder, and any documents so filed
and incorporated by reference subsequent to the date hereof and prior to the termination of
the offering of the Securities by the Underwriters will, at the time they are each filed
with the Commission, comply in all material respects with the requirements of the Exchange
Act and the instructions, rules and regulations of the Commission thereunder; and, when read
together with the Registration Statement, the Pricing Disclosure Package and the Prospectus,
none of such documents included or includes or will include any untrue statement of a
material fact or omitted or omits or will omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Each Permitted Free Writing
Prospectus (as defined below) listed on Schedule III hereto does not conflict in any
material respect with the information contained in the Registration Statement, the Pricing
Disclosure Package or the Prospectus.
(c) With respect to the Registration Statement, (i) the Registration Statement is an
“automatic shelf registration statement” (as defined in Rule 405 under the Securities Act),
(ii) the Company has not received from the Commission any notice pursuant to Rule 401(g)(2)
of the Securities Act objecting to the use of the automatic shelf registration statement and
(iii) the conditions for use of Form S-3, as set forth in the General Instructions thereof,
have been satisfied.
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(d) At the determination date for the offering of the Securities within the meaning of
Rule 164(h) under the Securities Act, the Company was not an “ineligible issuer” as defined
in Rule 405 under the Securities Act.
(e) The Company has been incorporated, is validly existing as a corporation and its
status is active under the laws of the State of Florida; has corporate power and authority
to own, lease and operate its properties and to conduct its business as contemplated under
this Agreement and the other agreements to which it is a party; and is duly qualified as a
foreign corporation to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify would not have a
material adverse effect on the business, properties, results of operations or financial
condition of the Company.
(f) The historical financial statements incorporated by reference in the Registration
Statement, the Pricing Prospectus and the Prospectus present fairly the financial condition
and operations of the Company at the respective dates or for the respective periods to which
they apply; such financial statements have been prepared, in each case, in accordance with
generally accepted accounting principles consistently applied throughout the periods
involved, except that the quarterly financial statements, if any, incorporated by reference
from any Quarterly Reports on Form 10-Q contain condensed footnotes prepared in accordance
with applicable Exchange Act rules and regulations; and Deloitte & Touche LLP, which has
audited the financial statements is an independent registered public accounting firm as
required by the Securities Act or the Exchange Act and the rules and regulations of the
Commission thereunder.
(g) Except as reflected in, or contemplated by, the Registration Statement and the
Pricing Disclosure Package, since the respective dates as of which information is given in
the Registration Statement and the Pricing Prospectus, and prior to the Closing Date, (i)
there has not been any material adverse change in the business, properties, results of
operations or financial condition of the Company, (ii) there has not been any material
transaction entered into by the Company other than transactions contemplated by the
Registration Statement and the Pricing Prospectus or transactions arising in the ordinary
course of business and (iii) the Company has no material contingent obligation that is not
disclosed in the Pricing Disclosure Package and the Prospectus that could likely result in a
material adverse change in the business, properties, results of operations or financial
condition of the Company.
(h) The Company has full corporate power and authority to execute, deliver and perform
its obligations under this Agreement. The execution and delivery of this Agreement, the
consummation of the transactions herein contemplated and the fulfillment of the terms hereof
on the part of the Company to be fulfilled have been duly authorized by all necessary
corporate action of the Company in accordance with the provisions of its articles of
incorporation, as amended (the “Charter”), by-laws and applicable law.
(i) The consummation of the transactions herein contemplated and the fulfillment of the
terms hereof will not (i) result in a breach of any of the terms or
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provisions of, or
constitute a default under, the Charter or the Company’s by-laws or (ii)
result in a breach of any terms or provisions of, or constitute a default under, any
applicable law or any indenture, mortgage, deed of trust or other material agreement or
instrument to which the Company is now a party or any judgment, order, writ or decree of any
government or governmental authority or agency or court having jurisdiction over the Company
or any of its assets, properties or operations that, in the case of any such breach or
default, would have a material adverse effect on the business, properties, results of
operations or financial condition of the Company.
(j) The Securities conform in all material respects to the description contained in the
Pricing Disclosure Package and the Prospectus.
(k) The Company has no subsidiaries that meet the definition of “significant
subsidiary” as defined in Section 210.1-02(w) of Regulation S-X promulgated under the
Securities Act.
(l) The Mortgage (A) has been duly authorized, executed and delivered by the Company,
and, assuming due authorization, execution and delivery of the Forty-Ninth Supplemental
Indenture by the Trustee, constitutes a valid and legally binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject to (i) applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or similar laws
affecting creditors’ rights generally and (ii) general principles of equity and any implied
covenant of good faith and fair dealing (regardless of whether such enforceability is
considered in a proceeding at law or in equity and except for the effect on enforceability
of federal or state law limiting, delaying or prohibiting the making of payments outside the
United States); provided, however, that certain remedies, waivers and other provisions of
the Mortgage may not be enforceable, but such unenforceability will not render the Mortgage
invalid as a whole or affect the judicial enforcement of (x) the obligation of the Company
to repay the principal, together with the interest thereon as provided in the Securities or
(y) the right of the Trustee to exercise its right to foreclose under the Mortgage; and (B)
conforms in all material respects to the description thereof in the Pricing Disclosure
Package and the Prospectus. The Mortgage (including the Forty-Ninth Supplemental Indenture
upon due execution by the Company and the Trustee in accordance with the Mortgage) has been
qualified under the 0000 Xxx.
(m) The Securities have been duly authorized by the Company and, when authenticated in
the manner provided for in the Indenture and delivered against payment of the required
consideration therefor, will constitute valid and legally binding obligations of the
Company, entitled to the benefits of the Mortgage enforceable against the Company in
accordance with its terms, subject to (i) applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or similar laws affecting creditors’ rights generally and
(ii) general principles of equity (regardless of whether such enforceability is considered
in a proceeding at law or in equity and except for the effect on enforceability of federal
or state law limiting, delaying or prohibiting the making of payments outside the United
States).
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(n) The Company is not an “investment company” within the meaning of the Investment
Company Act of 1940, as amended (the “1940 Act”).
(o) Except as described in or contemplated by the Pricing Disclosure Package and the
Prospectus, there are no pending or, to the knowledge of the Company, threatened actions,
suits or proceedings (regulatory or otherwise) against or affecting the Company or its
properties that are likely in the aggregate to result in any material adverse change in the
business, properties, results of operations or financial condition of the Company, or that
are likely in the aggregate to materially and adversely affect the Mortgage, the Securities
or the consummation of this Agreement or the transactions contemplated herein or therein.
(p) No filing with, or authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency is necessary or
required for the performance by the Company of its obligations hereunder in connection with
the offering, issuance or sale of the Securities hereunder or the consummation of the
transactions herein contemplated or for the due execution, delivery or performance of the
Mortgage by the Company, except such as have already been made or obtained or as may be
required under the Securities Act, state securities laws or securities laws of any
jurisdiction outside the United States of America, and except for the qualification of the
Forty-Ninth Supplemental Indenture under the 1939 Act.
4. Purchase and Sale; Manner of Sale.
(a) On the basis of the representations, warranties and covenants herein contained, but
subject to the terms and conditions herein set forth, the Company agrees to sell to each of
the Underwriters, severally and not jointly, and each such Underwriter agrees, severally and
not jointly, to purchase from the Company, the respective principal amount of Securities of
each series set forth opposite the name of such Underwriter in Schedule II hereto at
the purchase price set forth in Schedule II hereto.
(b) The Underwriters agree to make promptly a bona fide public offering of the
Securities to the public for sale as set forth in the Pricing Disclosure Package, subject,
however, to the terms and conditions of this Agreement. The Underwriters agree that the
information that they have presented to investors at or prior to the execution of this
Agreement is consistent in all material respects with the information that is contained in
the Pricing Disclosure Package.
(c) Each Underwriter, severally and not jointly, represents, warrants and agrees that
(i) it has complied and will comply with all applicable provisions of the Financial Services
and Markets Xxx 0000 (the “FSMA”) with respect to anything done by it in relation to the
Securities in, from or otherwise involving the United Kingdom; and (ii) it has only
communicated, or caused to be communicated, and will only communicate, or cause to be
communicated, any invitation or inducement to engage in investment activity (within the
meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of
the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the
Company.
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(d) In relation to each Member State of the European Economic Area that has implemented
the Prospectus Directive (each, a “Relevant Member State”), each Underwriter, severally and
not jointly, represents, warrants and agrees that with effect
from and including the date on which the Prospectus Directive is implemented in that
Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make
an offer of Securities to the public in that Relevant Member State prior to the publication
of a prospectus in relation to the Securities which has been approved by the competent
authority in that Relevant Member State or, where appropriate, approved in another Relevant
Member State and notified to the competent authority in that Relevant Member State, all in
accordance with the Prospectus Directive, except that it may, with effect from and including
the Relevant Implementation Date, make an offer of Securities to the public in that Relevant
Member State at any time:
(i) to legal entities that are authorized or regulated to operate in the
financial markets or, if not so authorized or regulated, whose corporate purpose is
solely to invest in securities;
(ii) to any legal entity that has two or more of (1) an average of at least 250
employees during the last financial year; (2) a total balance sheet of more than
€43,000,000 and (3) an annual net turnover of more than €50,000,000, as shown in its
last annual or consolidated accounts;
(iii) to fewer than 100 natural or legal persons (other than qualified
investors as defined in the Prospectus Directive) subject to obtaining the prior
consent of the Representative for any such offer; or
(iv) in any other circumstances falling within Article 3(2) of the Prospectus
Directive;
provided that no such offer of Securities shall result in a requirement for the
publication by the Company or any Underwriter of a prospectus pursuant to Article 3
of the Prospectus Directive (or supplemental prospectus pursuant to Article 16 of
the Prospectus Directive).
For the purposes of this provision, the expression of an “offer of Securities to the
public” in relation to any Securities in any Relevant Member State means the communication
in any form and by any means of sufficient information on the terms of the offer and the
Securities to be offered so as to enable an investor to decide to purchase or subscribe for
the Securities, as the same may be varied in that Relevant Member State by any measure
implementing the Prospectus Directive in that Relevant Member State and the term “Prospectus
Directive” means Directive 2003/71/EC and includes any relevant implementing measure in each
Relevant Member State.
5. Free Writing Prospectuses.
(a) The Company represents and agrees that, without the prior consent of the
Representative, it has not made and will not make any offer relating to the Securities that
would constitute a “free writing prospectus” as defined in Rule 405 under the Securities
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Act, other than a Permitted Free Writing Prospectus; each Underwriter represents and agrees
that, without the prior consent of the Company and the Representative, it has not made and
will not make any offer relating to the Securities that would constitute a “free
writing prospectus,” as defined in Rule 405 under the Securities Act, other than a
Permitted Free Writing Prospectus or a free writing prospectus that is not required to be
filed by the Company pursuant to Rule 433 under the Securities Act. Any such free writing
prospectus the use of which is consented to by the Company and the Representative is
referred to herein as a “Permitted Free Writing Prospectus.” The only Permitted Free
Writing Prospectus as of the time of this Agreement is the final term sheet referred to in
paragraph 5(b) below.
(b) The Company agrees to file a final term sheet, in the form of Schedule I
hereto and approved by the Representative pursuant to Rule 433(d) under the Securities Act
within the time period prescribed by such Rule.
(c) The Company and the Underwriters have complied and will comply with the
requirements of Rule 164 and Rule 433 under the Securities Act applicable to any free
writing prospectus, including timely Commission filing where required and legending.
(d) The Company agrees that if at any time following issuance of a Permitted Free
Writing Prospectus any event occurred or occurs as a result of which such Permitted Free
Writing Prospectus would conflict in any material respect with the information in the
Registration Statement, the Pricing Prospectus or the Prospectus or include an untrue
statement of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances then prevailing, not misleading,
the Company will give prompt notice thereof to the Representative and, if requested by the
Representative, will prepare and furnish without charge to each Underwriter a Permitted Free
Writing Prospectus or other document which will correct such conflict, statement or
omission; provided, however, that this representation and warranty shall not apply to any
statements or omissions in a Permitted Free Writing Prospectus made in reliance upon and in
conformity with information furnished in writing to the Company by an Underwriter through
the Representative, expressly for use therein.
6. Time and Place of Closing; Default of Underwriters.
(a) Payment for the Securities shall be made at the direction of the Company against
delivery of the Securities at the office of The Bank of New York Mellon, Corporate Trust
Department, 000 Xxxxxxx Xxxxxx, Xxxxx 0X, Xxx Xxxx, Xxx Xxxx 00000, or such other place,
time and date as the Representative and the Company may agree. Such delivery and payment
shall occur at or about 11:00 a.m., New York City time, on March 25, 2010, and is herein
called the “Closing Date.” Payment for the Securities shall be by wire transfer of
immediately available funds against delivery to The Depository Trust Company or to The Bank
of New York Mellon, as custodian for The Depository Trust Company, in fully registered
global form registered in the name of Cede & Co., as nominee for The Depository Trust
Company, for the respective accounts specified by the Representative not later than the
close of business on the business day prior to the
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Closing Date or such other date and time
not later than the Closing Date as agreed by The Depository Trust Company or The Bank of New
York Mellon. For the purpose of expediting the checking of the certificates by the
Representative, the Company agrees to make the Securities available to the Representative
not later than 3:00 p.m., New York
City time, on the last full business day prior to the Closing Date at said office of
The Bank of New York Mellon.
(b) If one or more Underwriters shall, for any reason other than a reason permitted
hereunder, fail to take up and pay for the principal amount of the Securities of any series
to be purchased by such one or more Underwriters, the Company shall immediately notify the
Representative, and the non-defaulting Underwriters shall be obligated to take up and pay
for (in addition to the respective principal amount of the Securities of such series set
forth opposite their respective names in Schedule II hereto) the principal amount of
Securities of such series that such defaulting Underwriter or Underwriters failed to take up
and pay for, up to a principal amount thereof equal to, in the case of each such
non-defaulting Underwriter, 10% of the principal amount of the Securities of such series.
Each non-defaulting Underwriter shall do so on a pro-rata basis according to the amounts set
forth opposite the name of such non-defaulting Underwriter in Schedule II hereto,
and such non-defaulting Underwriters shall have the right, within 24 hours of receipt of
such notice, either to take up and pay for (in such proportion as may be agreed upon among
them), or to substitute another Underwriter or Underwriters, satisfactory to the Company, to
take up and pay for, the remaining principal amount of the Securities that the defaulting
Underwriter or Underwriters agreed but failed to purchase. If any unpurchased Securities
still remain, then the Company or the Representative shall be entitled to an additional
period of 24 hours within which to procure another party or parties, members of the
Financial Industry Regulatory Authority, Inc. (the “Authority”) (or if not members of the
Authority, who are not eligible for membership in the Authority and who agree (i) to make no
sales within the United States, its territories or its possessions or to persons who are
citizens thereof or residents therein and (ii) in making sales to comply with the
Authority’s Conduct Rules) and satisfactory to the Company, to purchase or agree to purchase
such unpurchased Securities on the terms herein set forth. In any such case, either the
Representative or the Company shall have the right to postpone the Closing Date for a period
not to exceed three full business days from the date agreed upon in accordance with this
paragraph 6, in order that the necessary changes in the Registration Statement and
Prospectus and any other documents and arrangements may be effected. If (i) neither the
non-defaulting Underwriters nor the Company has arranged for the purchase of such
unpurchased Securities by another party or parties as above provided and (ii) the Company
and the non-defaulting Underwriters have not mutually agreed to offer and sell the
Securities other than the unpurchased Securities, then this Agreement shall terminate
without any liability on the part of the Company or any Underwriter (other than an
Underwriter that shall have failed or refused, in accordance with the terms hereof, to
purchase and pay for the principal amount of the Securities that such Underwriter has agreed
to purchase as provided in paragraph 4 hereof), except as otherwise provided in paragraph 7
and paragraph 8 hereof.
7. Covenants of the Company. The Company covenants with each Underwriter that:
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(a) As soon as reasonably possible after the execution and delivery of this Agreement,
the Company will file the Prospectus with the Commission pursuant to Rule 424 under the
Securities Act (“Rule 424”), setting forth, among other things, the necessary information
with respect to the terms of offering of the Securities and make
any other required filings pursuant to Rule 433 under the Securities Act. Upon
request, the Company will promptly deliver to the Representative and to counsel for the
Underwriters, to the extent not previously delivered, one fully executed copy or one
conformed copy, certified by an officer of the Company, of the Registration Statement, as
originally filed, and of all amendments thereto, if any, heretofore or hereafter made (other
than those relating solely to Registered Securities other than the Securities), including
any post-effective amendment (in each case including all exhibits filed therewith and all
documents incorporated therein not previously furnished to the Representative), including
signed copies of each consent and certificate included therein or filed as an exhibit
thereto, and will deliver to the Representative for distribution to the Underwriters as many
conformed copies of the foregoing (excluding the exhibits, but including all documents
incorporated therein) as the Representative may reasonably request. The Company will also
send to the Underwriters as soon as practicable after the date of this Agreement and
thereafter from time to time as many copies of the Prospectus and the Preliminary Prospectus
as the Representative may reasonably request for the purposes required by the Securities
Act.
(b) During such period (not exceeding nine months) after the commencement of the
offering of the Securities as the Underwriters may be required by law to deliver a
Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities
Act), if any event relating to or affecting the Company, or of which the Company shall be
advised in writing by the Representative shall occur, which in the Company’s reasonable
opinion (after consultation with counsel for the Representative) should be set forth in a
supplement to or an amendment of the Prospectus in order to make the Prospectus not
misleading in the light of the circumstances when it is delivered to a purchaser (or in lieu
thereof, the notice referred to in Rule 173(a) under the Securities Act), or if it is
necessary to amend the Prospectus to comply with the Securities Act, the Company will
forthwith at its expense prepare, file with the Commission and furnish to the Underwriters
and dealers named by the Representative a reasonable number of copies of a supplement or
supplements or an amendment or amendments to the Prospectus that will supplement or amend
the Prospectus so that as supplemented or amended it will comply with the Securities Act and
will not contain any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the circumstances when
the Prospectus is delivered to a purchaser, not misleading. In case any Underwriter is
required to deliver a Prospectus (or in lieu thereof, the notice referred to in Rule 173(a)
under the Securities Act) after the expiration of nine months after the commencement of the
offering of the Securities, the Company, upon the request of the Representative, will
furnish to the Representative, at the expense of such Underwriter, a reasonable quantity of
a supplemented or amended prospectus, or supplements or amendments to the Prospectus,
complying with Section 10(a) of the Securities Act.
(c) The Company will make generally available to its security holders, as soon as
reasonably practicable, but in any event not later than 16 months after the end of
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the
fiscal quarter in which the filing of the Prospectus pursuant to Rule 424 occurs, an
earnings statement (in form complying with the provisions of Section 11(a) of the Securities
Act, which need not be certified by independent public accountants) covering a
period of twelve months beginning not later than the first day of the Company’s fiscal
quarter next following the filing of the Prospectus pursuant to Rule 424.
(d) The Company will use commercially reasonable efforts promptly to do and perform all
things to be done and performed by it hereunder prior to the Closing Date and to satisfy all
conditions precedent to the delivery by it of the Securities.
(e) As soon as reasonably possible after the Closing Date, the Company will cause the
Forty-Ninth Supplemental Indenture to be recorded (i) in all recording offices in the State
of Florida in which the property intended to be subject to the lien of the Mortgage is
located and (ii) with the Surface Transportation Board.
(f) The Company will advise the Representative, or the Representative’s counsel,
promptly of the filing of the Prospectus pursuant to Rule 424 and of any amendment or
supplement to the Prospectus or Registration Statement or of official notice of institution
of proceedings for, or the entry of, a stop order suspending the effectiveness of the
Registration Statement and, if such a stop order should be entered, use commercially
reasonable efforts to obtain the prompt removal thereof.
(g) The Company will use commercially reasonable efforts to qualify the Securities, as
may be required, for offer and sale under the Blue Sky or legal investment laws of such
jurisdictions as the Representative may designate and will file and make in each year such
statements or reports as are or may be reasonably required by the laws of such
jurisdictions; provided, however, that the Company shall not be required to qualify as a
foreign corporation or dealer in securities, or to file any general consents to service of
process, under the laws of any jurisdiction.
(h) Prior to the termination of the offering of the Securities, the Company will not
file any amendment to the Registration Statement or supplement to the Pricing Prospectus or
the Prospectus which shall not have previously been furnished to the Representative or of
which the Representative shall not previously have been advised or to which the
Representative shall reasonably object in writing and which has not been approved by the
Representative or its counsel, acting on behalf of the Underwriters.
(i) If at any time when Securities remain unsold by the Underwriters, the Company
receives from the Commission a notice pursuant to Rule 401(g)(2) of the Securities Act or
otherwise ceases to be eligible to use the automatic shelf registration statement form, the
Company will (i) promptly notify the Representative, (ii) promptly file a new registration
statement or post-effective amendment on the proper form relating to the Securities, in a
form reasonably satisfactory to the Representative, or take such other action, after
consultation with counsel, as the Company believes is appropriate, (iii) use commercially
reasonable efforts to cause any new registration statement or post-effective amendment that
may be filed pursuant to clause (ii) above, to be declared effective and (iv) promptly
notify the Representative of any such effectiveness. The
11
Company will take all other
commercially reasonable action as it deems appropriate to permit the public offering and
sale of the Securities to continue as contemplated in the registration statement that was
subject to the Rule 401(g)(2) notice or for which the Company has otherwise become
ineligible. References herein to the Registration
Statement shall include such new registration statement or post-effective amendment, as
the case may be.
8. Payment of Expenses. The Company will pay all expenses incident to the performance
of its obligations under this Agreement, including (i) the printing and filing of the Registration
Statement and the printing of this Agreement, (ii) the delivery of the Securities to the
Underwriters, (iii) the fees and disbursements of the Company’s counsel and accountants, (iv) the
expenses in connection with the qualification of the Securities under securities laws in accordance
with the provisions of paragraph 7(g) hereof, including filing fees and the fees and disbursements
of counsel for the Underwriters in connection therewith, such fees and disbursements not to exceed
$7,500, (v) the printing and delivery to the Underwriters of copies of the Registration Statement
and all amendments thereto, the Preliminary Prospectus, any Permitted Free Writing Prospectus and
the Prospectus and any amendments or supplements thereto, (vi) the printing and delivery to the
Underwriters of copies of the Blue Sky Survey and (vii) the preparation, execution, filing and
recording by the Company of the Forty-Ninth Supplemental Indenture (such filing and recordation to
be promptly made after execution and delivery thereof to the Trustee under the Mortgage in the
counties in which the mortgaged property of the Company is located); and the Company will pay all
taxes, if any (but not including any transfer taxes), on the issue of the Securities and the filing
and recordation of the Forty-Ninth Supplemental Indenture. The fees and disbursements of
Underwriters’ counsel shall be paid by the Underwriters (subject, however, to the provisions of
this paragraph 8 requiring payment by the Company of fees and disbursements not to exceed $7,500);
provided, however, that if this Agreement is terminated in accordance with the provisions of
paragraph 9, 10 or 12 hereof, the Company shall reimburse the Representative for the account of the
Underwriters for the fees and disbursements of Underwriters’ counsel. The Company shall not be
required to pay any amount for any expenses of the Representative or of any other of the
Underwriters except as provided in paragraph 7 hereof and in this paragraph 8. The Company shall
not in any event be liable to any of the Underwriters for damages on account of the loss of
anticipated profit.
9. Conditions of Underwriters’ Obligations. The several obligations of the
Underwriters to purchase and pay for the Securities shall be subject to the accuracy of the
representations and warranties on the part of the Company as of the date hereof and the Closing
Date, to the performance by the Company of its obligations to be performed hereunder prior to the
Closing Date, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall be
in effect on the Closing Date and no proceedings for that purpose shall be pending before,
or, to the Company’s knowledge, threatened by, the Commission on the Closing Date and no
notice from the Commission pursuant to Rule 401(g)(2) of the Securities Act shall have been
received by the Company. The Representative shall have received, prior to payment for the
Securities, a certificate dated the Closing Date and signed by the Chairman, President,
Treasurer or a Vice President of the Company to the effect that no such stop order is in
effect, that no proceedings for such purpose are
12
pending before or, to the knowledge of the
Company, threatened by the Commission and no notice from the Commission pursuant to Rule
401(g)(2) of the Securities Act shall have been received by the Company.
(b) At the time of execution of this Agreement, or such later date as shall have been
consented to by the Representative, there shall have been issued, and on the Closing Date
there shall be in full force and effect, an order of the Florida Public Service Commission
authorizing the issuance and sale of the Securities, which shall not contain any provision
unacceptable to the Representative by reason of its being materially adverse to the Company
(it being understood that no such order in effect on the date of this Agreement and
heretofore furnished to the Representative or counsel for the Underwriters contains any such
unacceptable provision).
(c) At the Closing Date, the Representative shall receive favorable opinions, and with
respect to clauses (vii) and (viii), assurance statements, from: (1) Hunton & Xxxxxxxx LLP,
counsel for the Company, which opinions or assurance statements, as the case may be, shall
be satisfactory in form and substance to counsel for the Underwriters, and (2) Xxxxx &
XxXxxxx LLP, counsel for the Underwriters, in each of which opinions (except as to
subdivision (v) as to which Xxxxx & XxXxxxx LLP need express no opinion) said counsel may
rely as to all matters of Florida law upon the opinion of R. Xxxxxxxxx Xxxxx, General
Counsel of the Company, to the effect that:
(i) The Mortgage has been duly and validly authorized by all necessary
corporate action (with this opinion required in the Hunton & Xxxxxxxx LLP and Xxxxx
& XxXxxxx LLP opinions only as to the original Indenture dated as of January 1, 1944
and the supplemental indentures subsequent to, but not including, the Thirty-Eighth
Supplemental Indenture), has been duly and validly executed and delivered by the
Company (with this opinion required in the Hunton & Xxxxxxxx LLP and Xxxxx & XxXxxxx
LLP opinions only as to the Forty-Ninth Supplemental Indenture), and is a valid and
binding mortgage of the Company enforceable in accordance with its terms, except as
limited by bankruptcy, insolvency or other laws affecting mortgagees’ and other
creditors’ rights and general equitable principles and any implied covenant of good
faith and fair dealing (with this opinion required in the Hunton & Xxxxxxxx LLP and
Xxxxx & XxXxxxx LLP opinions only as to the original Indenture dated as of January
1, 1944 and the supplemental indentures subsequent to, but not including, the
Thirty-Eighth Supplemental Indenture); provided, however, that certain remedies,
waivers and other provisions of the Mortgage may not be enforceable, but such
unenforceability will not render the Mortgage invalid as a whole or affect the
judicial enforcement of (A) the obligation of the Company to repay the principal,
together with the interest thereon as provided in the Securities or (B) the right of
the Trustee to exercise its right to foreclose under the Mortgage;
(ii) The Mortgage has been duly qualified under the 1939 Act;
(iii) Assuming authentication of the Securities by the Trustee in accordance
with the Mortgage and delivery of the Securities to and payment for
13
the Securities
by the Underwriters, as provided in this Agreement, the Securities have been duly
and validly authorized, executed and delivered and are legal, valid and binding
obligations of the Company enforceable in accordance with their terms, except as
limited by bankruptcy, insolvency or other laws affecting mortgagees’ and other
creditors’ rights and general equitable principles and any
implied covenant of good faith and fair dealings, and are entitled to the
benefits of the security afforded by the Mortgage, and are secured equally and
ratably with all other bonds outstanding under the Mortgage except insofar as any
sinking or other fund may afford additional security for the bonds of any particular
series;
(iv) The statements made in the Basic Prospectus under the caption “Description
of First Mortgage Bonds” and in the Pricing Prospectus under the caption
“Description of Bonds,” insofar as they purport to constitute summaries of the
documents referred to therein, are accurate summaries in all material respects;
(v) The statements made in the Pricing Prospectus and the Prospectus under the
caption “Material U.S. Federal Tax Considerations,” insofar as they purport to
constitute summaries of matters of U.S. federal income tax law or legal conclusions
with respect thereto, are accurate and complete in all material respects;
(vi) This Agreement has been duly and validly authorized, executed and
delivered by the Company;
(vii) The Registration Statement, at each time and date it was declared, or is
deemed to have become, effective by the Commission, and the Pricing Disclosure
Package and the Prospectus, as of their respective dates (except as to the financial
statements and schedules and notes thereto or other financial, numerical,
accounting, statistical or quantitative information (or the assumptions with respect
thereto) included or incorporated by reference therein or excluded therefrom and
that part of the Registration Statement that constitutes the Statement of
Eligibility on Form T-1 upon which such opinions need not pass), appeared on their
face to respond in all material respects to the requirements of the Securities Act
and the 1939 Act and the applicable instructions, rules and regulations of the
Commission thereunder; and the documents or portions thereof filed with the
Commission pursuant to the Exchange Act and deemed to be incorporated by reference
in the Registration Statement, the Preliminary Prospectus, the Pricing Prospectus
and the Prospectus pursuant to Item 12 of Form S-3 (except as to financial
statements and schedules and notes thereto or other financial, numerical,
accounting, statistical or quantitative information (or the assumptions with respect
thereto) included or incorporated by reference therein or excluded therefrom and
that part of the Registration Statement that constitutes the Statement of
Eligibility on Form T-1 upon which such opinions need not pass), at the time they
were filed with the Commission, appeared on their face to respond in all material
respects to the requirements of the Exchange Act and the applicable instructions,
rules and regulations of the Commission thereunder; the Registration Statement was
effective upon filing with the
14
Commission under the Securities Act and, such counsel
has been verbally advised by the staff of the Commission that no stop order
suspending the effectiveness of the Registration Statement has been issued and not
withdrawn, and no proceedings for a stop order with respect thereto have been
instituted by the Commission; and
(viii) Nothing has come to the attention of said counsel that would lead them
to believe that the Registration Statement, at each time and date it was declared,
or is deemed to have become, effective by the Commission, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; and
nothing has come to the attention of said counsel that would lead them to believe
that (x) the Pricing Disclosure Package, as of the Applicable Time, included an
untrue statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under which
they were made, not misleading or (y) the Prospectus, as of its date and, as amended
or supplemented, at the Closing Date, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were
made, not misleading (except as to financial statements, schedules and notes thereto
or other financial, numerical, accounting, statistical or quantitative information
(or the assumptions with respect thereto) included or incorporated by reference
therein or excluded therefrom and that part of the Registration Statement that
constitutes the Statement of Eligibility on Form T-1 upon which such opinions need
not pass).
(d) At the Closing Date, the Representative shall receive from R. Xxxxxxxxx Xxxxx,
General Counsel of the Company, a favorable opinion in form and substance satisfactory to
counsel for the Underwriters, to the same effect with respect to the matters enumerated in
subdivisions (i), (iii), (vi) and (viii) of subparagraph (c) of this paragraph 9 as the
opinions required by said subparagraph (c), and to the further effect that:
(i) The Company has been incorporated, is validly existing as a corporation and
its status is active under the laws of the State of Florida;
(ii) The Company is duly authorized by its Charter to conduct the business that
it is now conducting as set forth in the Pricing Disclosure Package and the
Prospectus;
(iii) The Company is an electrical utility engaged in the business of
generating, transmitting, distributing and selling electric power to the general
public in the State of Florida;
(iv) The Company has valid and subsisting franchises, licenses and permits
adequate for the conduct of its business, except where the failure to hold such
franchises, licenses and permits would not have a material adverse effect on
15
the business, properties, results of operations or financial condition of the
Company;
(v) The Company has good and marketable title, with minor exceptions,
restrictions and reservations in conveyances, and defects that are of the nature
ordinarily found in properties of similar character and magnitude and that, in his
opinion, will not in any substantial way impair the security afforded by the
Mortgage, to all the properties described in the granting clauses of the Mortgage
and upon which the Mortgage purports to create a lien. The description in the
Mortgage of the above-mentioned properties is legally sufficient to constitute the
Mortgage a lien upon said properties, including, without limitation, properties
hereafter acquired by the Company (other than those expressly excepted and reserved
therefrom). Said properties constitute substantially all the permanent physical
properties and franchises (other than those expressly excepted and reserved
therefrom) of the Company and are held by the Company free and clear of all liens
and encumbrances except the lien of the Mortgage and excepted encumbrances, as
defined in the Mortgage. The properties of the Company are subject to liens for
current taxes, which it is the practice of the Company to pay regularly as and when
due. The Company has easements for rights-of-way adequate for the operations and
maintenance of its transmission and distribution lines that are not constructed upon
public highways. The Company has followed the practice generally of acquiring (i)
certain rights-of-way and easements and certain small parcels of fee property
appurtenant thereto and for use in conjunction therewith and (ii) certain other
properties of small or inconsequential value, without an examination of title and,
as to the title to lands affected by said rights-of-way and easements, of not
examining the title of the lessor or grantor whenever the lands affected by such
rights-of-way and easements are not of such substantial value as in the opinion of
the Company to justify the expense attendant upon examination of titles in
connection therewith. In the opinion of said counsel, such practice of the Company
is consistent with sound economic practice and with the method followed by other
companies engaged in the same business and is reasonably adequate to assure the
Company of good and marketable title to all such property acquired by it. It is the
opinion of said counsel that any such conditions or defects as may be covered by the
above recited exceptions are not substantial and would not materially interfere with
the Company’s use of such properties or with its business operations. The Company
has the right of eminent domain in the State of Florida under which it may, if
necessary, perfect or obtain title to privately owned land or acquire easements or
rights-of-way required for use or used by the Company in its public utility
operations;
(vi) The Mortgage has been recorded and filed in such manner and in such places
as may be required by law in order fully to preserve and protect, in all material
respects, the security of the bondholders and all rights of the Trustee thereunder;
and the Forty-Ninth Supplemental Indenture relating to the Securities is in proper
form for filing for record, both as a real estate mortgage and as a security
interest, in all counties in the State of Florida in which any of the property
(except as any therein or in the Mortgage are expressly excepted)
16
described therein or in the Mortgage as subject to the lien of the Mortgage is located and, as a
security interest, with the Surface Transportation Board and, upon such recording,
the Forty-Ninth Supplemental Indenture will constitute adequate record notice to
perfect the lien of the Mortgage, and preserve and protect, in all material
respects, the security of the bondholders and all rights of the Trustee, as to all
mortgaged and pledged property acquired by the Company subsequent to the recording
of the Forty-Eighth Supplemental Indenture and prior to the recording of the
Forty-Ninth Supplemental Indenture;
(vii) The Mortgage constitutes a valid, direct and first mortgage lien of
record upon all franchises and properties now-owned by the Company (other than those
expressly excepted therefrom and other than those franchises and properties which
are not, individually or in the aggregate, material to the Company or the security
afforded by the Mortgage) situated in the State of Florida, as described or referred
to in the granting clauses of the Mortgage, subject to the exceptions as to
bankruptcy, insolvency and other laws stated in subdivision (i) of subparagraph (c)
above;
(viii) The issuance and sale of the Securities have been duly authorized by all
necessary corporate action on the part of the Company;
(ix) An order has been entered by the Florida Public Service Commission
authorizing the issuance and sale of the Securities, and, to the best of the
knowledge of said counsel, said order is still in force and effect; and no further
filing with, approval, authorization, consent or other order of any public board or
body (except such as have been obtained under the Securities Act and as may be
required under the state securities or Blue Sky laws of any jurisdiction) is legally
required for the consummation of the transactions contemplated in this Agreement;
(x) Except as described in or contemplated by the Pricing Disclosure Package
and the Prospectus, there are no pending actions, suits or proceedings (regulatory
or otherwise) against the Company or any properties that are likely, in the
aggregate, to result in any material adverse change in the business, properties,
results of operations or financial condition of the Company or that are likely, in
the aggregate, to materially and adversely affect the Mortgage, the Securities or
the consummation of this Agreement, or the transactions contemplated herein or
therein; and
(xi) The consummation of the transactions herein contemplated and the
fulfillment of the terms hereof will not (i) result in a breach of any of the terms
or provisions of, or constitute a default under, the Charter or the Company’s
by-laws or (ii) result in a breach of any terms or provisions of, or constitute a
default under, any applicable law or any indenture, mortgage, deed of trust or other
material agreement or instrument to which the Company is now a party or any
judgment, order, writ or decree of any government or governmental authority or
agency or court having jurisdiction over the Company or any of its assets,
17
properties or operations that, in the case of any such breach or default, would have
a material adverse effect on business, properties, results of operations or
financial condition of the Company.
(e) The Representative shall have received on the date hereof and shall receive on the
Closing Date from Deloitte & Touche LLP, a letter addressed to the Representative, on behalf
of the Underwriters, containing statements and information of the type ordinarily included
in accountants’ SAS 72 “comfort letters” to underwriters with respect to the audit reports,
financial statements and certain financial information contained in or incorporated by
reference into the Pricing Prospectus and the Prospectus.
(f) At the Closing Date, the Representative shall receive a certificate of the
Chairman, President, Treasurer or a Vice President of the Company, dated the Closing Date,
to the effect that the representations and warranties of the Company in this Agreement are
true and correct as of the Closing Date.
(g) Any Permitted Free Writing Prospectus, and any other material required pursuant to
Rule 433(d) under the Securities Act, shall have been filed by the Company with the
Commission within the applicable time periods prescribed by Rule 433.
(h) All legal proceedings taken in connection with the sale and delivery of the
Securities shall have been satisfactory in form and substance to counsel for the
Underwriters, and the Company, as of the Closing Date, shall be in compliance with any
governing order of the Florida Public Service Commission, except where the failure to comply
with such order would not be material to the offering or validity of the Securities.
In case any of the conditions specified above in this paragraph 9 shall not have been
fulfilled or waived by 2:00 p.m., New York City time, on the Closing Date, this Agreement may be
terminated by the Representative by delivering written notice thereof to the Company. Any such
termination shall be without liability of any party to any other party except as otherwise provided
in paragraphs 7 and 8 hereof.
10. Conditions of the Company’s Obligations. The obligations of the Company to
deliver the Securities shall be subject to the following conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall be
in effect on the Closing Date, no proceedings for that purpose shall be pending before or
threatened by the Commission on the Closing Date and no notice from the Commission pursuant
to Rule 401(g)(2) of the Securities Act shall have been received by the Company.
(b) Prior to 12:00 Noon, New York City time, on the day following the date of this
Agreement, or such later date as shall have been consented to by the Company, there shall
have been issued and on the Closing Date there shall be in full force and effect an order of
the Florida Public Service Commission authorizing the issuance and sale by the Company of
the Securities, which shall not contain any provision unacceptable to the Company by reason
of its being materially adverse to the Company (it being understood
18
that the order in effect as of the date of this Agreement does not contain any such unacceptable provision).
In case any of the conditions specified in this paragraph 10 shall not have been fulfilled at
the Closing Date, this Agreement may be terminated by the Company by delivering written notice
thereof to the Representative. Any such termination shall be without liability of any party to any
other party except as otherwise provided in paragraphs 7 and 8 hereof.
11. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Underwriter, each officer
and director of each Underwriter and each person who controls any Underwriter within the
meaning of Section 15 of the Securities Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject and to
reimburse each such Underwriter, each such officer and director, and each such controlling
person for any legal or other expenses (including to the extent hereinafter provided,
reasonable counsel fees) incurred by them, when and as incurred, in connection with
investigating any such losses, claims, damages or liabilities or in connection with
defending any actions, insofar as such losses, claims, damages, liabilities, expenses or
actions arise out of or are based upon any untrue statement, or alleged untrue statement, of
a material fact contained in the Registration Statement, the Pricing Disclosure Package or
the Prospectus, or in the Registration Statement or Prospectus as amended or supplemented
(if any amendments or supplements thereto shall have been furnished), or in any issuer free
writing prospectus (as defined in Rule 433 of the Securities Act), or the omission or
alleged omission to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading; provided, however, that the indemnity
agreement contained in this paragraph 11 shall not apply to any such losses, claims,
damages, liabilities, expenses or actions arising out of or based upon any such untrue
statement or alleged untrue statement, or any such omission or alleged omission, if such
statement or omission was made in reliance upon and in conformity with the information
furnished herein or in writing to the Company by any Underwriter through the Representative
expressly for use in the Registration Statement, the Pricing Disclosure Package or the
Prospectus, or any amendment or supplement to any thereof, or any free writing prospectus
used by the Company, or arising out of, or based upon, statements in or omissions from that
part of the Registration Statement that shall constitute the Statement of Eligibility under
the 1939 Act (Form T-1) of the Trustee. The indemnity agreement of the Company contained in
this paragraph 11 and the representations and warranties of the Company contained in
paragraph 3 hereof shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of any Underwriter, and any such officer or director or
any such controlling person and shall survive the delivery of the Securities. The
Underwriters agree to notify promptly the Company, and each other Underwriter, of the
commencement of any litigation or proceedings against them or any of them, or any such
officer or director, or any such controlling person, in connection with the sale of the
Securities.
(b) Each Underwriter severally, and not jointly, agrees to indemnify and hold harmless
the Company, its officers who signed the Registration Statement and its
19
directors, and each person who controls the Company within the meaning of Section 15 of the Securities Act,
against any and all losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject and to reimburse each of them for any legal or other expenses (including, to the extent
hereinafter provided, reasonable counsel fees) incurred by them, when and as incurred, in
connection with investigating any such losses, claims, damages, or liabilities, or in
connection with defending any actions, insofar as such losses, claims, damages, liabilities,
expenses or actions arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, the Pricing Disclosure
Package, the Prospectus as amended or supplemented (if any amendments or supplements thereto
shall have been furnished), or the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein not
misleading, if such statement or omission was made in reliance upon and in conformity with
information furnished herein or in writing to the Company by such Underwriter or through the
Representative on behalf of such Underwriter expressly for use in the Registration Statement
or the Pricing Disclosure Package or any amendment or supplement to any thereof. The
indemnity agreement of all the respective Underwriters contained in this paragraph 11 shall
remain operative and in full force and effect regardless of any investigation made by or on
behalf of the Company or any other Underwriter, or any such officer or director or any such
controlling person, and shall survive the delivery of the Securities. The Company agrees
promptly to notify the Representative of the commencement of any litigation or proceedings
against the Company or any of its officers or directors, or any such controlling person, in
connection with the sale of the Securities.
(c) The Company and each of the Underwriters agree that, upon the receipt of notice of
the commencement of any action against it, its officers or directors, or any person
controlling it as aforesaid, in respect of which indemnity may be sought on account of any
indemnity agreement contained herein, it will promptly give written notice of the
commencement thereof to the party or parties against whom indemnity shall be sought
hereunder. The Company and each of the Underwriters agree that the notification required by
the preceding sentence shall be a material term of this Agreement. The omission so to
notify such indemnifying party or parties of any such action shall relieve such indemnifying
party or parties from any liability that it or they may have to the indemnified party on
account of any indemnity agreement contained herein if such indemnifying party was
materially prejudiced by such omission, but shall not relieve such indemnifying party or
parties from any liability that it or they may have to the indemnified party otherwise than
on account of such indemnity agreement. In case such notice of any such action shall be so
given, such indemnifying party shall be entitled to participate at its own expense in the
defense or, if it so elects, to assume (in conjunction with any other indemnifying parties)
the defense of such action, in which event such defense shall be conducted by counsel chosen
by such indemnifying party (or parties) and satisfactory to the indemnified party or parties
who shall be defendant or defendants in such action, and such defendant or defendants shall
bear the fees and expenses of any additional counsel retained by them; but if the
indemnifying party shall elect not to assume the defense of such action, such indemnifying
parties will reimburse such indemnified party or parties for the reasonable fees and
expenses of any counsel
20
retained by them, as such expenses are incurred; provided, however,
if the defendants (including any impleaded parties) in any such action include both the
indemnified party and the indemnifying party, and counsel for the indemnified party shall
have concluded, in its reasonable judgment, that there may be a conflict of interest
involved in the representation by such counsel of both the indemnifying party and the
indemnified party, the indemnified party or parties shall have the right to select separate
counsel, satisfactory to the indemnifying party, to participate in the defense of such
action on behalf of such indemnified party or parties (it being understood, however, that
the indemnifying party shall not be liable for the expenses of more than one separate
counsel (in addition to one local counsel) representing the indemnified parties who are
parties to such action). Each of the Company and the several Underwriters agrees that
without the other party’s prior written consent, which consent shall not be unreasonably
withheld, it will not settle, compromise or consent to the entry of any judgment in any
claim in respect of which indemnification may be sought under the indemnification provisions
of this Agreement, unless such settlement, compromise or consent includes an unconditional
release of such other party from all liability arising out of such claim.
(d) If the indemnification provided for in subparagraphs (a) or (b) above is for any
reason unavailable to or insufficient to hold harmless an indemnified party in respect of
any losses, liabilities, claims, damages or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount of such losses, liabilities,
claims, damages and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company, on
the one hand, and the Underwriters, on the other hand, from the offering of the Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i) is not
permitted by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of the
Company, on the one hand, and of the Underwriters, on the other hand, in connection with the
statements or omissions that resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations. The relative benefits
received by the Company, on the one hand, and the Underwriters, on the other hand, in
connection with the offering of the Securities pursuant to this Agreement shall be deemed to
be in the same respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by the Company
and the total underwriting discount received by the Underwriters, in each case as set forth
on the cover of the Prospectus, bear to the aggregate initial public offering price of the
Securities as set forth on such cover. The relative fault of the Company, on the one hand,
and the Underwriters, on the other hand, shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the Company or
by the Underwriters and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contribution pursuant to this
subparagraph (d) were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to above in this subparagraph (d).
The rights of contribution contained in this Section 11
21
shall remain operative and in full
force and effect regardless of any investigation made by or on behalf of any Underwriter or
the Company and shall survive delivery of the Securities. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this subparagraph (d), each officer and director of each
Underwriter and each person, if any, who controls an Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution as such Underwriter, and each director of the Company, each officer
of the Company who signed the Registration Statement, and each person, if any, who controls
the Company within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act shall have the same rights to contribution as the Company. The Underwriters’
respective obligations to contribute pursuant to this subparagraph (d) are several in
proportion to the principal amount of Securities set forth opposite their respective names
in Schedule II hereto and not joint.
(e) For purposes of this paragraph 11, it is understood and agreed that the only
information provided by the Underwriters expressly for use in the Registration Statement and
the Pricing Disclosure Package were the following parts of the Preliminary Prospectus
section titled “Underwriting”: the second, third and fourth sentences of the second
paragraph, the third sentence of the third paragraph and all of the fourth paragraph.
12. Termination Date of this Agreement. This Agreement may be terminated by the
Representative at any time prior to the Closing Date by delivering written notice thereof to the
Company, if on or after the date of this Agreement but prior to such time (a) there shall have
occurred any general suspension of trading in securities on The New York Stock Exchange, or there
shall have been established by The New York Stock Exchange or by the Commission or by any federal
or state agency or by the decision of any court, any limitation on prices for such trading or any
restrictions on the distribution of securities or (b) there shall have occurred any new outbreak of
hostilities including, but not limited to, significant escalation of hostilities that existed on or
prior to the date of this Agreement, or any national or international calamity or crisis, or any
material adverse change in the financial markets of the United States, the effect of which
outbreak, escalation, calamity or crisis, or material adverse change in the financial markets of
the United States shall be such as to make it impracticable, in the reasonable judgment of the
Representative, for the Underwriters to enforce contracts for the sale of the Securities, or (c)
the Company shall have sustained a substantial loss by fire, flood, accident or other calamity that
renders it impracticable, in the reasonable judgment of the Representative, to consummate the sale
of the Securities and the delivery of the Securities by the several Underwriters at the initial
public offering price, or (d) there shall have been any downgrading or any notice of any intended
or potential downgrading in the rating accorded the Company’s securities by any “nationally
recognized statistical rating organization” as that term is defined by the Commission for the
purposes of Rule 436(g)(2) under the Securities Act, or any such organization shall have publicly
announced that it has under surveillance or review, with possible negative implications, its rating
of the Securities, or any of the Company’s other outstanding debt, the effect of which in the reasonable judgment of the
Representative, makes it impracticable or inadvisable to consummate the sale of the Securities and
the delivery of the Securities by the several Underwriters at the
22
initial public offering price or (e) there shall have been declared, by either federal or New York authorities, a general banking
moratorium. This Agreement may also be terminated at any time prior to the Closing Date if in the
reasonable judgment of the Representative the subject matter of any amendment or supplement to the
Registration Statement, the Preliminary Prospectus or Prospectus (other than an amendment or
supplement relating solely to the activity of any Underwriter or Underwriters) filed after the
execution of this Agreement shall have materially impaired the marketability of the Securities.
Any termination hereof pursuant to this paragraph 12 shall be without liability of any party to any
other party except as otherwise provided in paragraphs 7 and 8 hereof.
13. Miscellaneous. The validity and interpretation of this Agreement shall be
governed by the laws of the State of New York. Unless otherwise specified, time of day refers to
New York City time. This Agreement shall inure to the benefit of, and be binding upon, the
Company, the several Underwriters, and with respect to the provisions of paragraph 11 hereof, the
officers and directors and each controlling person referred to in paragraph 11 hereof, and their
respective successors. Nothing in this Agreement is intended or shall be construed to give to any
other person, firm or corporation any legal or equitable right, remedy or claim under or in respect
of this Agreement or any provision herein contained. The term “successors” as used in this
Agreement shall not include any purchaser, as such purchaser, of any of the Securities from any of
the several Underwriters.
14. Nature of Relationship. The Company acknowledges and agrees that (i) in
connection with all aspects of each transaction contemplated by this Agreement, the Company and the
Underwriters have an arms-length business relationship that creates no fiduciary duty on the part
of any party and each expressly disclaims any fiduciary relationship, (ii) the Underwriters and
their respective affiliates may be engaged in a broad range of transactions that involve interests
that differ from those of the Company, (iii) the Underwriters have not provided any legal,
accounting, regulatory or tax advice with respect to the offering contemplated hereby and the
Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it
deemed appropriate, and (iv) any review by the Underwriters of the Company, the transactions
contemplated hereby or other matters relating to such transactions will be performed solely for the
benefit of the Underwriters and shall not be on behalf of the Company.
15. Notices. All communications hereunder shall be in writing or by telefax and, if
to the Underwriters, shall be mailed, transmitted by any standard form of telecommunication or
delivered to the Representatives at Banc of America Securities LLC, Xxx Xxxxxx Xxxx, XX0-000-00-00,
Xxx Xxxx, Xxx Xxxx 00000, Attention: High-Grade Debt Capital Markets Transaction Management/Legal,
X.X. Xxxxxx Securities Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate
Desk, Mitsubishi UFJ Securities (USA), Inc., 0000 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Capital Markets Group and if to the Company, shall be mailed or delivered
to it at 000 Xxxxx Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxxxx X.
Xxxxxxxx, Vice President and Treasurer.
16. Counterparts. This Agreement may be simultaneously executed in counterparts, each
of which when so executed shall be deemed to be an original. Such counterparts shall together
constitute one and the same instrument.
23
17. Defined Terms. Unless otherwise defined herein, capitalized terms used in this
Underwriting Agreement shall have the meanings assigned to them in the Registration Statement.
[The remainder of this page has been intentionally left blank.]
24
If the foregoing is in accordance with your understanding of our agreement, kindly sign and
return to the Company the enclosed duplicate hereof whereupon it will become a binding agreement
between the Company and the several Underwriters in accordance with its terms.
| Very truly yours, FLORIDA POWER CORPORATION d/b/a PROGRESS ENERGY FLORIDA, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxx | |||
| Authorized Representative | ||||
Accepted as of the date first
above written, as Underwriter
named in, and as the Representative
of the other Underwriters named in,
Schedule II attached to this Agreement.
above written, as Underwriter
named in, and as the Representative
of the other Underwriters named in,
Schedule II attached to this Agreement.
BANC OF AMERICA SECURITIES LLC
By: |
/s/ Xxxxx Xxxxxx | |||
| X.X. XXXXXX SECURITIES INC. | ||||
By: |
/s/ Xxxxxx Xxxxxxxxx | |||
| MITSUBISHI UFJ SECURITIES (USA), INC. | ||||
By: |
/s/ Xxxx Xxxxx | |||
[Signature Page of PEF First Mortgage Bond Underwriting Agreement]
25
SCHEDULE I
Free Writing Prospectus Dated March 22, 2010
Registration Statement No. 000-000000-00
Filed Pursuant to Rule 433 of the Securities Act of 1933
Registration Statement No. 000-000000-00
Filed Pursuant to Rule 433 of the Securities Act of 1933
FINAL TERM SHEET
Issuer: |
Florida Power Corporation d/b/a Progress Energy Florida, Inc. | |
Supplemental Indenture: |
Forty-Ninth, dated as of March 1, 2010 | |
Format: |
SEC Registered | |
Trade Date: |
Xxxxx 00, 0000 | |
Xxxxxxxxxx Date: |
March 25, 2010 | |
Joint Book-Running Managers: |
Banc of America Securities LLC | |
| X.X. Xxxxxx Securities Inc. | ||
| Mitsubishi UFJ Securities (USA), Inc. | ||
Co-Managers: |
BNY Mellon Capital Markets, LLC | |
| Citigroup Global Markets Inc. | ||
| SunTrust Xxxxxxxx Xxxxxxxx, Inc. | ||
| Xxxxxx X. Xxxxx & Co. Incorporated | ||
| BB&T Capital Markets, a division of Xxxxx & Xxxxxxxxxxxx, LLC | ||
Current Ratings Senior Secured Debt: |
A1 (Negative Watch) (Xxxxx’x); A- (Negative Outlook) (S&P); A+ (Negative Watch) (Fitch) | |
2020 Bonds Security: |
First Mortgage Bonds, 4.55% Series due 2020 | |
Principal Amount: |
$250,000,000 | |
Date of Maturity: |
April 1, 2020 | |
Coupon: |
4.55% | |
Interest Payment Dates: |
Payable semi-annually in arrears on April 1 and October 1, beginning October 1, 2010 | |
Public Offering Price: |
99.943% of the principal amount thereof, plus no accrued interest to the date of payment and delivery. | |
Benchmark Treasury: |
3.625% UST due on February 15, 2020 | |
Benchmark Treasury Yield: |
3.657% | |
Spread to Benchmark Treasury: |
90 basis points | |
Re-offer Yield: |
4.557% | |
Redemption Terms: |
Optional — redeemable prior to maturity, in whole or in part, at the option of the Company at a make-whole redemption price (as defined and described in further detail in the Prospectus Supplement) using applicable treasury rate plus 15 basis points. | |
| Special — redeemable prior to maturity, in whole but not in part, upon the occurrence of specific events, at the option of the Company at a |
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| make-whole redemption price (as defined and described in further detail in the Prospectus Supplement). | ||
2040 Bonds Security: |
First Mortgage Bonds, 5.65% Series due 2040 | |
Principal Amount: |
$350,000,000 | |
Date of Maturity: |
April 1, 2040 | |
Coupon: |
5.65% | |
Interest Payment Dates: |
Payable semi-annually in arrears on April 1 and October 1, beginning October 1, 2010 | |
Public Offering Price: |
99.583% of the principal amount thereof, plus no accrued interest to the date of payment and delivery. | |
Benchmark Treasury: |
4.375% UST due on November 15, 2039 | |
Benchmark Treasury Yield: |
4.579% | |
Spread to Benchmark Treasury: |
110 basis points | |
Re-offer Yield: |
5.679% | |
Redemption Terms: |
Optional — redeemable prior to maturity, in whole or in part, at the option of the Company at a make-whole redemption price (as defined and described in further detail in the Prospectus Supplement) using applicable treasury rate plus 20 basis points. | |
| Special — redeemable prior to maturity, in whole but not in part, upon the occurrence of specific events, at the option of the Company at a make-whole redemption price (as defined and described in further detail in the Prospectus Supplement). |
Note: A securities rating is not a recommendation to buy, sell or hold securities and may be
subject to revision or withdrawal at any time.
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering. You may get these documents for free by visiting
XXXXX on the SEC Web site at xxx.xxx.xxx (and more specifically, at the URL link
xxxx://xxx.xxx/xxx-xxx/xxxxxx-xxxxx?xxxxxxxxxxxxxxxxx&XXXx0000000000&xxxxxxxxxxxxx).
Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange
to send you the prospectus if you request it by calling Banc of America Securities LLC toll-free at
1-800-294-1322, X.X. Xxxxxx Securities Inc. collect at 0-000-000-0000 or Mitsubishi UFJ Securities
(USA), Inc. collect at 0-000-000-0000.
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SCHEDULE II
| Underwriter | Principal Amount of Securities | |||||||
| 2020 Bonds | 2040 Bonds | |||||||
Banc of America Securities LLC |
$ | 57,500,000 | $ | 80,500,000 | ||||
X.X. Xxxxxx Securities Inc. |
$ | 57,500,000 | $ | 80,500,000 | ||||
Mitsubishi UFJ Securities (USA), Inc. |
$ | 57,500,000 | $ | 80,500,000 | ||||
BNY Mellon Capital Markets, LLC |
$ | 25,000,000 | $ | 35,000,000 | ||||
Citigroup Global Markets Inc. |
$ | 25,000,000 | $ | 35,000,000 | ||||
SunTrust Xxxxxxxx Xxxxxxxx, Inc. |
$ | 17,500,000 | $ | 24,500,000 | ||||
Xxxxxx X. Xxxxx & Co. Incorporated |
$ | 5,000,000 | $ | 7,000,000 | ||||
BB&T Capital Markets, a division of Xxxxx & Xxxxxxxxxxxx, LLC |
$ | 5,000,000 | $ | 7,000,000 | ||||
Total |
$ | 250,000,000 | $ | 350,000,000 | ||||
Representatives: |
Banc of America Securities LLC | |
| X.X. Xxxxxx Securities Inc. | ||
| Mitsubishi UFJ Securities (USA), Inc. | ||
2020 Bond Purchase Price: |
99.293% of the aggregate principal amount thereof, plus no accrued interest to the date of payment and delivery. | |
0000 Xxxx Xxxxxxxx Price: |
98.708% of the aggregate principal amount thereof, plus no accrued interest to the date of payment and delivery. |
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SCHEDULE III
PRICING DISCLOSURE PACKAGE
| 1) | Preliminary Prospectus Supplement dated March 22, 2010 (which shall be deemed to include the Incorporated Documents) | ||
| 2) | Permitted Free Writing Prospectus |
| a) | Final Term Sheet attached as Schedule I hereto |
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